Madras High Court
V.Perumal Nadar vs Thangapandi Nadar on 15 April, 2021
S.A.No.1701 of 2001
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 15.04.2021
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.No.1701 of 2001
and
C.M.P.No.17827 of 2001
V.Perumal Nadar ... Appellant
Vs.
1.Thangapandi Nadar
2.Rajalakshmi
3.Rahavan
4.Ilayaperumal ... Respondents
(R2 to R4 are brought on record as LRS of
deceased sole respondent vide order dated
09.10.2020 made in C.M.P.(MD)Nos.6886 and
6887 of 2019 in S.A.No.1701 of 2001 by JNBJ)
Prayer : Second Appeal filed under Section 100 of Civil Procedure Code,
against the judgment and decree of the learned Principal District Judge,
Thoothukudi, dated 30.09.1999 in A.S.No.144 of 1998, confirming the
judgment and decree of the learned District Munsif, Srivaikundam, in
O.S.No.130 of 1996, dated 16.07.1998.
For Appellant : Mr.B.Tamilnidhi
For Respondents : Mr.M.P.Senthil
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S.A.No.1701 of 2001
JUDGEMENT
The defendant in O.S.No.130 of 1996 on the file of the District Munsif
Court, Srivaikundam is the appellant in this second appeal. The said suit was
filed by one Thangapandi Nadar seeking the relief of declaration and
permanent injunction in respect of the suit property. Perumal Nadar, the
appellant herein was shown as the sole defendant. The suit was decreed vide
judgment and decree dated 16.07.1998. Questioning the same, the defendant
filed A.S.No.144 of 1998 before the Principal District Court, Tuticorin. Vide
judgment and decree dated 30.09.1999, the first appeal was dismissed.
Aggrieved by the same, this second appeal has been filed. During the
pendency of the second appeal, Thangapandi Nadar/plaintiff passed away and
his legal heirs have been brought on record.
2.The second appeal was admitted on the following substantial questions
of law:-
“(1) Whether plaintiff can prove his title based on evidence of
defendant?
(2) Whether the Courts below can decide the title without valid
documents based on which title suit has been filed?”
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S.A.No.1701 of 2001
3.Heard the learned counsel on either side on the aforesaid substantial
questions of law.
4.The case of the plaintiff is that the suit property measuring 2.15 cents is
comprised in S.No.1099 in Bat Thuraisamypuram village. The plaintiff claimed
that the said property was purchased by him vide Ex.A.1 dated 07.01.1965.
Since the appellant herein staked claim over the said property, he had to
institute O.S.No.130 of 1996 before the District Munsif Court, Srivaikundam,
seeking the aforesaid suit reliefs. According to the defendant, the property in
S.No.1099 measured an extent of 17 cents. He claimed 7.5 cents by virtue of
Court decree of the year 1933 (Ex.B.1). The balance extent of 3.5 cents is
claimed by the appellant by virtue of Ex.B.2 dated 03.12.1984, a sale deed
executed by one Ponnupandian in his favour. The Courts below noted that the
land in question is vacant. Therefore, possession has to necessarily follow title.
The plaintiff had predicated his claim on the strength of Ex.A.1 dated
07.01.1965. It is a registered document. The suit itself was filed in the year
1996. Thus even when the suit was filed, Ex.A.1 had qualified itself to be an
ancient document. Since it is a registered document, presumption as to valid
execution is automatically attached. The Courts below also took note of the
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S.A.No.1701 of 2001
answers given by the defendant/Perumal Nadar during the course of his cross
examination. The four boundaries given in the suit schedule as well as in
Ex.A.1 are one and the same. The defendant had admitted the eastern boundary
given in the suit schedule. The appellant's property is located on the eastern
side of the suit property. When a specific question was posed regarding
western boundary, the defendant feigned ignorance. He however disputed the
northern and southern boundaries. After a overall consideration of the evidence
on record, the Courts below came to the conclusion that identity of the property
is not really in dispute and that while the plaintiff has anchored his claim on
Ex.A.1 dated 07.01.1965, the defendant has based his claim on Ex.B.2, which
was executed some 19 ½ years later. It is relevant to note here that the plaintiff
is accepting the claim of the defendant over 7.5 cents of property that devolved
on him by virtue of Ex.B.1/Court decree. The dispute is regarding the balance
extent.
5.Even though the second appeal has been admitted on the strength of
aforesaid substantial questions of law, as rightly pointed out by the learned
counsel appearing for the respondents, it is certainly open to the respondents to
argue that no substantial question of law has really arisen for consideration.
The limitation as regards exercise of jurisdiction under Section 100 of Civil
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S.A.No.1701 of 2001
Procedure Code is well known. Both the Courts below concurrently found on
questions of fact against the appellant. No case has been made out for
interference. I hold that no substantial question of law has really arisen. In any
event, when both the parties have adduced evidence, the question of onus does
not really arise. It was certainly open to the Courts below to look into the
testimony of the defendant for adjudicating the issues that were thrown up for
consideration. I find no merit in this second appeal and it stands dismissed. No
costs. Consequently, connected miscellaneous petition is closed.
15.04.2021
Index : Yes / No
Internet : Yes/ No
ias
Note :In view of the present lock down owing to COVID-19
pandemic, a web copy of the order may be utilized for official
purposes, but, ensuring that the copy of the order that is
presented is the correct copy, shall be the responsibility of the
advocate/litigant concerned.
To:
1.The Principal District Court,
Thoothukudi.
2.The District Munsif Court,
Srivaikundam.
3.The Record Keeper,
V.R. Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis/
S.A.No.1701 of 2001
G.R.SWAMINATHAN, J.
ias
S.A.No.1701 of 2001
15.04.2021
https://www.mhc.tn.gov.in/judis/
